Slocum v. . English

Church, Ch. J. We have carefully considered the able and ingenious argument of the learned counsel for the appellants, but we feel constrained to concur with the decision of the court below, that the sale of the lands in question upon proceedings instituted by the administrator is void, because such proceedings were not instituted within three years after the granting of letters of administration. We deem it unnecessary to discuss at length the point involved, as we concur substantially with the views expressed by Miller, J., in the court below. The proceedings under which the sale took place can derive no aid from the previous proceedings instituted by a creditor. Without determining whether the previous proceedings might not have been revived and continued upon proper citations and hearing for that purpose, or a new order made therein by the surrogate for interested persons to show cause, it seems clear that such proceedings were not in fact revived or continued. It appears affirmatively that the application was made by the administrator in his own behalf as an independent proceeding; and the validity of the sale must stand or fall by his authority to make it. There is no opportunity for indulging in presumption, as the facts appearing on the face of the paper show the want of jurisdiction. The former proceeding by the creditor was abandoned, and a new one instituted. The point that three years had not elapsed is not tenable. The statute commences to run from the date of the original granting of letters of administration, and not (in case of a change of administrator), from the time letters were granted to the administrator who made the sale. An administrator de bonis non takes the estate where his predecessor left it; and in respect to the time of limitation to sell real estate, as well as in most other respects, his administration is a mere *497 continuation of that commenced by the latter. Otherwise, the rights of heirs, devisees, purchasers and creditors would be uncertain and indefinite. The object of the statute was to fix a certain period after which bona fide purchasers would be protected, and actions might be maintained against heirs and devisees. Prior to the Kevised Statutes the time for making the application was not limited by statute; and, in Mooers v. White (6 J. Ch., 360), it was held that the application must be made within a reasonable time, and that ordinarily a reasonable time was one year. The language of the statute is not inconsistent with this view. Section 1 of title 4 speaks of executors and administrators as a class of officers; and the language, “ within three years after the granting of their letters,” means after the granting of letters of administration, whatever changes of incumbents may have been made. This is strongly confirmed by the terms of section 53, which provides that no suit shall be brought against the heirs or devisees within three years from the time of granting letters of administration, and if brought after that time, the suit shall be stayed upon proof that an application had been previously made. The time for bringing actions under this section is clearly three years from the time of the original granting of letters; and the limitation in the first section was evidently intended to be the same period. The judgment must be affirmed. All concur; Miller, J., not sitting. Judgment affirmed.